Satyabrata Kar Mabapatra v. State of West Bengal — 1980 DIGILAW 382 (CAL)

JUDGMENT B.C. Ray, J – These two appeals are at the instance of the two petitioners against the common judgement passed by Amiya Kumar Mookerjee, J. on 31st August, 1979 in Civil Rule Nos. 8211 (W) of 1978 and 8212(W) of 1978 whereby the Rules were discharged. 2. The petitioners, Nemai Sundar Jana was appointed as an Assistant Public Prosecutor on 26th of August, 1974 by the Governor with effect from the date of assumption of charge until further orders and he was posted to the court of Sub-Divisional Judicial Magistrate at Kontai in the district of Midnapore. The appointment was made on a purely temporary basis. The petitioner assumed charge as Assistant Public Prosecutor in the court of Sub-divisional Judicial Magistrate, Contai on 2nd of September 1974. The petitioner, it has been stated, discharged his duties without any blemish and to the entire satisfaction of all the authorities concerned. On August 31, 1977, a representation was made by the petitioner to the Secretary, Judicial Department. Government of West Bengal for his confirmation in the post of Assistant Public Prosecutor on the ground that he has already completed the period of probation of two years as required under Rule 4(d) of West Bengal Assistant Public Prosecutor (Qualification, Method of Recruitment and Conditions of Service) Rules, 1974. No reply was, however, given to the said representation. The petitioner, however, continued in the said post till 24th of September, 1978. On 25th of September, 1978, the impugned order of termination of his service was made by the Governor with immediate effect. 3 The petitioner has pleaded to his petition that the impugned order pretending to remove him from the post of Assistant Public Prosecutor is illegal, arbitrary, mala fide and vitiated by malice in law. It has also been submitted that the petitioner was allowed to continue in the said post after expiry of the period of probation of two years and as such he should be deemed to have been confirmed in the post and the authorities concerned has no power to terminate his service in the manner as has been done. It has also been submitted that the petitioner was allowed to continue in the said post after expiry of the period of probation of two years and as such he should be deemed to have been confirmed in the post and the authorities concerned has no power to terminate his service in the manner as has been done. It has also been submitted that the impugned order terminating his service is discriminatory being made in violation of the provisions of Articles 14 and 16 of the Constitution of India as persons junior to the petitioner had been retained in the service while terminating the service of the petitioner by the impugned order without recording any reason whatsoever. The impugned order of termination is by way of punishment and as the same had been made without giving the petitioner any reasonable opportunity of making any representation against the order, it was illegal and in contravention of the canons of natural justice and fairplay. It has also been pleaded that the impugned order was made for the collateral purpose and with oblique motive. Hence the order ill question is illegal, arbitrary, mala fide and grossly vitiated by malice in law. It has also been submitted that the petitioner was served with several orders by the District Magistrate Midnapore under the direction of the Legal Remembrancer, West Bengal, and the Special Secretary, Government of West Bengal Home (Political Department) for withdrawal of a large number of pending criminal cases involving dacoity, attempt to commit murder, arson, burglary, theft etc. which the petitioner would not comply with as the petitioner has the responsibility to apply his mind to the facts of each cafe in such circumstances as provided by Article 321 of the Code of Criminal Procedure. The petitioner asked for further instruction from the District Magistrate, Midnapore on January 4, 1978 regarding the grounds of withdrawal of those cases in the light of the observations made by the Supreme Court in a case. A reply was received by the petitioner from the District Magistrate Midnapore, (vide District Magistrate's Memo No. 505(6) J.N.) dated 21-3-78 with an opinion of Sri Biren Mitra, public Prosecutor as the grounds to be taken for withdrawal of pending criminal cases under the direction of the Legal Rememberancer, West Bengal. A reply was received by the petitioner from the District Magistrate Midnapore, (vide District Magistrate's Memo No. 505(6) J.N.) dated 21-3-78 with an opinion of Sri Biren Mitra, public Prosecutor as the grounds to be taken for withdrawal of pending criminal cases under the direction of the Legal Rememberancer, West Bengal. The petitioner, however could not accept those grounds as convincing for exercising his powers under S. 321 of the Code of Criminal Procedure and since then he became an eye-sore to the judicial department. It has been stated that the impugned order of termination was made due to his non-compliance with order of the District Magistrate, Midnapore who directed him to withdraw pending criminal casts involving grave charges of attempt to commit murder, dacoity, arson, burglary etc. The impugned order, it has teen submitted is also in violation of the principles of natural justice as the petitioner was not given any opportunity of making any representation against the impugned order of termination nor he was given any opportunity of being heard. The order in question is in contravention of the protection afforded to the petitioner by Article 311(1) of the Constitution of India. 4. The petitioner has also pleaded that the order of termination issued by the Secretary, Government of West Bengal, with a forwarding note to the District Magistrate to pay to the petitioner one month's salary in lieu of a month's notice by forwarding a copy of the Government order on 29th of September 1978. The petitioner was not paid any salary as directed to be paid by the Judicial Secretary and the said salary was not offered to the petitioner. As such the order is also illegal and unenforceable. A writ of or in the nature of Mandomus was prayed for by the respondent to rescind, revoke or cancel the impugned order and also to forbear from giving effect to the same. There was also a prayer for a writ of or in the nature of Certiorari or other appropriate direction for quashing and setting aside the impugned order. 5. A rule nisi was issued and an interim order was issued restraining the respondents from giving effect to the said order of termination. The interim order was, however, subsequently modified. 6. An affidavit in opposition sworn by one Sri Mihir Kr. Sengupta, a Deputy Magistrate and Collector, was filed on behalf of the respondents. 5. A rule nisi was issued and an interim order was issued restraining the respondents from giving effect to the said order of termination. The interim order was, however, subsequently modified. 6. An affidavit in opposition sworn by one Sri Mihir Kr. Sengupta, a Deputy Magistrate and Collector, was filed on behalf of the respondents. In paragraph 5 of the said affidavit in opposition it has been stated that during the tenure of the Assistant Public Prosecutor several complaints have been received against Sri Nrmai Sundar Jana, the petitioner. It has also been stated in paragraphs 9 and 10 of the affidavit in opposition that the petitioner was never appointed on probation nor he should be deemed to have been appointed permanently in the post of Assistant Public Prosecutor as he was allowed to work for more than two years. His mere continuance as Assistant Public Prosecutor does not automatically confer on him the status of a probationer or any permanent status. It has also been stated in paragraph 14 that the petitioner was never confirmed in the post and as such the benefits available to a confirmed Government employee are not available to him. It has also been stated that in terms of Rule 24(B)(2) of the West Bengal Service Rules, Part I, 1971 read with explanation No. (viii) under Rule & of the West Bengal Services (Classification, Control and Appeal) Rules, 1971, the termination of services of the petitioner who was appointed purely on a temporary basis until further orders to the post of Assistant Public Prosecutor does not confer on him any right to the post of Assistant Public Prosecutor. Therefore, the order of termination of services with one month's notice or one month's salary in lieu thereof is not a penalty and the same is perfectly legal. It has also been stated that the order was made not for collateral purpose with oblique motive by the respondents. It has not been made mala fide nor the same is vitiated by malice in law. It was also stated in paragraph 21 that the Assistant Public Prosecutor was directed to withdraw certain cases but the contention that the Assistant Public Prosecutor has a responsibility to apply his mind to the facts of the case in such circumstances is not admitted. It was also stated in paragraph 21 that the Assistant Public Prosecutor was directed to withdraw certain cases but the contention that the Assistant Public Prosecutor has a responsibility to apply his mind to the facts of the case in such circumstances is not admitted. The Assistant Public Prosecutor, it has been submitted, is a Government employee and he has no independent jurisdiction, He is appointed under S.25 of the Criminal Procedure Code according to the West Bengal Assistant Public Prosecutor (Classification, Method or Recruitment and Conditions of Services) Rules, 1974. He is a government servant and must act according to the direction of Government. The Assistant Public Prosecutor is a Government servant which the Public Prosecutor is not. Therefore the contention of the Assistant Public Prosecutor that the is to apply his mind while making a application for withdrawal of case is totally erroneous. He must act according to the direction of the Government given to him by the Governor or the District Magistrate, according to the Code of Criminal Procedure. In paragraph 21 of the said affidavit in opposition it has been stated, that the allegation that the direction of the Judicial Secretary about the payment of salary was not complied with is wholly false. The petitioner was offered twice the salary for the month of September and October, 1978 at the time of service of notice of the termination on 30.9.1978 but he refused to accept the payment. The report of the Sub-Divisional Officer, Kontai, showed that the salary upto November, 1978 of Nemai Sundar Jana was paid on 5th of January, 1979. An affidavit in reply has been filed on behalf of the petitioner reiterating the statements and allegations made in the petition. A supplementary affidavit was filed on behalf of the petitioner pursuant to leave granted by the court, In paragraph 5 of the said supplementary affidavit it has been averred that there are 18 courts of Judicial Magistrates in the District of Midnapore including the court of Chief Judicial Magistrate of the said district and all Assistant Public Prosecutors excepting the petitioner and Sri Kar Mahapatra have been continuing in the service. The particulars of the Assistant Public Prosecutors have been mentioned therein. The particulars of the Assistant Public Prosecutors have been mentioned therein. It has also been stated in paragraph six that the above mentioned Assistant Public Prosecutors appointed under S. 25(1) of the Criminal Procedure Code, 1973 are still continuing service and they are all juniors to the petitioner. In paragraph 7 it has been stated that a large number of Assistant Public Prosecutors appointed under S.21(1) of the Criminal Procedure Code in other districts in State of West Bengal posted in each court of Judicial Magistrate and who are juniors to the petitioner are still working as such mentioned therein. No counter to the supplementary affidavit has been filed on behalf of the respondents. 7. Both the rules were heard by Amiya Kumar Mukherjee, J. who has been pleased to discharge the rules holding inter alia that it did not appear from the records of each of the cases produced before the court that there was an enquiry report nor there was any complaint from any quarter before the impugned order of termination of service of the petitioner was passed by the Government. It was also held that the order of termination of service was served on the petitioner on 30th of September 1978 and they were offered one month's salary in lieu of one month's notice in terms of sub-rule (21 of Rule 34(B) which the petitioner refused to accept. The impugned order was made in compliance of the Rules. It was also held that there was no upper limit of the period of probation and as such the petitioner could not be deemed to have been conferred in the post after expiry of the probationary period of two sears. There is no specific charge of arbitrary discrimination nor any hostile motive had been ascribed to the authority concerned terminating the service. As such the order in question is not discriminatory. 8. Feeling aggrieved by the above order the instant appeals have been preferred by the petitioners. 9. Mr. There is no specific charge of arbitrary discrimination nor any hostile motive had been ascribed to the authority concerned terminating the service. As such the order in question is not discriminatory. 8. Feeling aggrieved by the above order the instant appeals have been preferred by the petitioners. 9. Mr. Noni Coomar Chakraborti, learned advocate appearing in support of the petition has submitted in the first place that the appointment of the petitioner in the post of Assistant Public Prosecutor is a statutory appointment made pursuant to the provision of Rule 25(1) of the Criminal Procedure Code, 1973 and the said appointment has been made in accordance with the Rules framed under Article 309 of the constitution of India which is termed as Assistant Public Prosecutors (Qualification, Method of Recruitment and Conditions of Service) Rules, 1974. The petitioner was appointed as probationer in accordance with Rule 4 of the above Rules against a permanent post. According to the Rule 4(d) the petitioner has already undergone it period of probation for two years and he was allowed to continue in the said Post after the completion of the probationary period and he should be deemed to have been confirmed in the said post. Hence the order of termination purporting to terminate his service is illegal and arbitrary and cannot be given effect to. It has been submitted by Mr. Chakrahorti that the purported order of termination of service though ex-facie innocuous, in fact, made by way of punishment and there was an enquiry on the basis of certain complaints against the petitioner. It has also been submitted by Mr. Chakrahorti that the petitioner refused to comply with the instruction given to him for withdrawal of some pending some criminal cases relating to grave offence and this enraged and led the authorities concerned who hell enquiry against certain allegations, to pass the order of termination on the basis of the enquiry report. The petitioner was not given an opportunity of hearing nor he was given opportunity to make any representation against the Impugned order which he is entitled to under Article 311(1) of the Constitution. The order is, therefore, illegal and the same liable to be quashed and set aside. The petitioner was not given an opportunity of hearing nor he was given opportunity to make any representation against the Impugned order which he is entitled to under Article 311(1) of the Constitution. The order is, therefore, illegal and the same liable to be quashed and set aside. It has also been pleaded that the order is vitiated as there has been non-observance of the principles of equal opportunity and equal treatment in the matter of services as provided in Articles 14 and 16 of the Constitution nor there has been any observance of fairplay in the termination of the service of the petitioner without any reason whatsoever. Those who are juniors to the petitioner have been allowed to continue to service as Assistant Public Prosecutors while the petitioners have been signed out for the purpose of termination of their services. This is wholly discriminatory being contrary to provisions of Articles 14 and 16 of the Constitution. It has been also submitted by Mr. Chakraborti that the order of termination is bad as no payment in lieu of one month's notice has been made at the time when the order of termination was served on the petitioner and were given effect to as required under Rule 34(B)(2) of the West Bengal Service Rules, Part I, 1971. The impugned order therefore, is not enforceable. 10. Mr. Naranarayan Gooptu, learned Government Pleader, appearing on behalf of the respondents has submitted with great force that the petitioner was appointed to the post of Assistant Public Prosecutor until further orders. The petitioner was neither appointed as probationer nor for a particular period but his appointment is for a period until further orders. According to Mr. Gooptu such appointment does not confer any right on the petitioner to the post which he held and as such the order terminating his service is not by way of punishment and the same has been made in accordance with the contract of employment. While elucidating his point Mr. Gooptu further contended that the appointment is not one which is covered by the West Bengal Assistant Public Prosecutors (Qualification. Method of Recruitment and Conditions of Service) Rules, 1974 as the petitioner was not appointed as a probationer, Mr Gooptu also submitted the Rule 4(d) of the said Rules is not applicable to such appointment. It is not an appointment in accordance with the said rules. Method of Recruitment and Conditions of Service) Rules, 1974 as the petitioner was not appointed as a probationer, Mr Gooptu also submitted the Rule 4(d) of the said Rules is not applicable to such appointment. It is not an appointment in accordance with the said rules. The second branch of Mr. Gooptu’s argument is that the appointment until further order is not temporary appointment or an appointment as probationer against a permanent post and in support of his submission Mr. Gooptu refers to note to Rule 34(b) of the West Bengal Service Rules. Mr. Gooptu also submitted that the petitioner, even it is assumed for the argument's sake, is taken to be appointed as a probationer against a substantive vacancy still then he cannot be deemed to have been confirmed in the post he held merely on the expiry of the probationary period of two years as provided under Rule 4(d) of the above Rules as there was no upper limit fixed for the probationary period. There is no order of confirmation by the authorities concerned and the petitioner in absence of such an order is not to be deemed to have been confirmed to the post wherein he worked. It has been next submitted by Mr. Gooptu that the order of termination of the services of the petitioner being an innocuous one the same has not cast any stigma or aspersion on the integrity of the service career of the petitioner. Hence the protection of Article 311(1) is not available to the petitioners. It has been further submitted by Mr. Gooptu that the appointment of the petitioner to the post of Assistant Public Prosecutor until further orders, is an appointment made in accordance with Rule 34(B) instead of Rule 4(d) of the above rules framed under Article 309 of the Constitution Such appointment is not governed by Rule 4(d) of the said Rules. It his been also submitted that the order of the termination has been made in accordance with the terms of item (viii) (b) of the Explanation below Rule 8 of the West Bengal Services (Classification, Control and Appeal) Rules, 1971. The order has been made in accordance with the with the terms of the contract of the service and the service rules and it is a valid order and so it cannot be challenged as the same has got no evil consequences. The order has been made in accordance with the with the terms of the contract of the service and the service rules and it is a valid order and so it cannot be challenged as the same has got no evil consequences. It has also been submitted by Mr. Gooptu that the petitioner was appointed temporarily and his service was terminated in a direct way. The question of discrimination cannot and does not arise in such case. It has also been further submitted that the order was not made on the basis of any enquiry into the allegations against the petitioner nor on the basis of any report consequent to such enquiry. As such the impugned order cannot be branded as being made in violation of Articles 14 and 16 and without any regard to the principles of fairplay. 11. As regards the first submission made on behalf of the petitioner that the petitioners have been deemed to be confirmed in the post of Assistant Public Prosecutor as the probationary period of two years was completed and the petitioner was allowed to continue in the post after such completion of the probationary period till September, 1979 when the impugned order of termination of his service was made. The petitioner was admittedly appointed as Assistant Public Prosecutor in the Court of the Sub-divisional Judicial Magistrate, Contai, under S. 25(1) of the Code of Criminal Procedure. 1973 in accordance with the Rules framed under proviso to Article 309 of the Constitution and termed as West Bengal Assistant Public Prosecutors (Qualification, Method of Recruitment and Conditions of Service) Rules 1974. Rule 4(d) of the said Rule.> which is relevant for the purpose runs as follows : "(d) The persons appointed substantively to the permanent posts of Assistant Public Prosecutors shall undergo a period of probation for two years, his confirmation depending on the satisfactory completion of the period of probation. Provided that the period of probation may be extended at the direction of the State Government.” This said rule provides that persons appointed substantively to the permanent post of Assistant Public Prosecutors shall undergo a period of probation for two years. This rule does not specially provide any upper limit beyond which the probationary period will under no circumstances extend. Provided that the period of probation may be extended at the direction of the State Government.” This said rule provides that persons appointed substantively to the permanent post of Assistant Public Prosecutors shall undergo a period of probation for two years. This rule does not specially provide any upper limit beyond which the probationary period will under no circumstances extend. As such it cannot be said that the petitioner on his completion of the probationary period of two years shall be deemed to have been confirmed in the post as he has been allowed to continue in the said post after completion of such period. This submission, in my opinion, cannot be sustained in view of the rule quoted above, By allowing the petitioner to continue in the post simply means that the period of probation has been extended implicitly and unless and until a specific order confirming the petitioner in the said post is made by the authority concerned there is room for contending that he is deemed to have been confirmed in the post. The decision cited at the bar reported in AIR 1968 SC 1210 , The State of Punjab v Dharam Singh is not applicable to this Case as in that case proviso to Rule 6(3) of the Punjab Educational Service (Provincialised Cadres) Class III Rules, 1961 clearly fixes a period of time of three years beyond which the probationary period cannot be extended. It was held on the basis of the said Rule that as the respondent was allowed to continue after the expiry of the maximum period probation the employee shall be deemed to have been confirmed in the post by implication. I have already stated that there is no maximum period of probation fixed by Rule 4(d) of the said Rules and as such this decision is of no avail to the petitioner. Similar observations were made in the case of State of Haryana v. Rajendra Sareen reported in AIR 1972 SC 1004 at 1022 para 75 and in (1979) 3 SCC 478 Paramjit Singh v. Ram Rekha. This contention therefore, has no merit and so it fails. 12. Similar observations were made in the case of State of Haryana v. Rajendra Sareen reported in AIR 1972 SC 1004 at 1022 para 75 and in (1979) 3 SCC 478 Paramjit Singh v. Ram Rekha. This contention therefore, has no merit and so it fails. 12. The next question that poses for consideration is whether the order of termination which is ex facie innocuous and does not cast any stigma or aspersion on the integrity of the service career of the petitioner is, in fact, an order made by way of punishment or for collateral purposes with oblique motive. To meet this challenge it has been urged on behalf of the State respondent that the petitioner being appointed to the post of Assistant Public Prosecutor temporarily, i e. until further orders. Such appointment does not confer on him any right to the post. The petitioner is, at best, a temporary government servant in accordance with Rule 34(B)(2) of the West Bengal Services Rules, Part I, 1971. The service of the petitioner had been terminated in a direct way in accordance with the provisions of the Rules governing the conditions of the service. The order of termination is ex facie innocuous and it does not cast any stigma or asperation on the service career of the petitioner nor the same has been made by way of punishment. Hence Articles 311(2) of the Constitution of India cannot be available to the petitioner. In support of this submission several cases have been cited. It has been further submitted on behalf of he State respondent that if the order is on the face of it innocuous and does not contain any expression which casts a reflection about the competence or integrity of the service career of the petitioner. It is not for the court to delve into the Secretariat file to ascertain whether the same has been made with oblique purpose of terminating the service of the servant on the basis of the allegations made against him and the report submitted on enquiry held into such allegations. In support of this submission reliance has been placed on the decision reported in AIR 1976 SC 2547 . 13. In support of this submission reliance has been placed on the decision reported in AIR 1976 SC 2547 . 13. It is now well settled by several pronouncements of the Supreme Court that a Government servant appointed as probationer or on an officiating basis or temporarily does not acquire any right to the post he held unless and until in the case of a probationer confirmation is made and in the case of temporary employers they acquire quasi permanent status on the basis of the service rules go erning the conditions of their service. If the service of such public servant is terminated in accordance with the terms of the contract of the service or in accordance with the rules governing the conditions of his service such termination is not per se to be deemed to have been made by way of punishment and the protection provided in Article 311(1) of the Constitution is not attracted in such cases. Similarly if a government servant has been officiating in a higher post any order made reverting him to his substantive post from the officiating higher rank does not amount to reduction of rank by way of punishment and Article 311(2) of the Constitution is also not attracted The simple reason is that in either of these cases the government servant does not suffer any penalty in the shape of loss of pay and allowances or reduction in rank as the government servant has no right to the post he held temporarily or on an officiating post or to the rank he held temporarily on an officiating basis. But nonetheless it cannot be said that under no circumstances the order of termination of service of a temporary employee or of a probationer or of an employee appointed to officiate in any post or the order reverting an employee officiating in a higher post to his substantive post cannot amount to punishment. But nonetheless it cannot be said that under no circumstances the order of termination of service of a temporary employee or of a probationer or of an employee appointed to officiate in any post or the order reverting an employee officiating in a higher post to his substantive post cannot amount to punishment. In other words, if the order of termination of service of a temporary employee or the order of reduction of rank of an employee officiating in a higher post is made by way of punishment i.e. on the ground of misconduct, neglect of duty, inefficiency or on the basis of report of enquiry made into certain allegation against his conduct as a government servant such order being an order of penal consequences will invoke the provisions of Article 311(2) of the Constitution. This has been laid down in AIR 1958 SC 36 at page 49 para 28, PL Dhingra v. Union of India, where S.R. Das, CJ. who spoke for the Supreme Court observed :– “In short if the termination of service is founded on the right flowing from the contract or the service rules then prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has by contruct or under rules the right to the terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, in negligence, inefficiency or other disqualifications, then it is a punishment and the requirement of Article 311 must be complied with”. In making the above observations the Supreme Court relied upon its two earlier decisions reported in AIR 1953 SC 250 ; 1953 SCR 655 Satish Chandra v. Union of India and AIR 1954 SC 369 : 1959(1) SCR Page 35 Shyamlal v. State of U.P. The decision in Dhingra’s case has been relied upon in AIR 1960 SC 684 State of Bihar v. Gopi Kishore Prosad and it has been observed that if the government proceed against an employee in a direct way, without casting any stigma or aspersion on his honesty or competence, his discharge would nor in law have the effect of removal from his service by way of punishment and he would not have any grievance to ventilate in any court. But instead of taking that easy course if the Government choose the more difficult one of starting a proceeding against him as a dishonest and incompetent officer the protection of Article 311(2) of the Constitution would be available to the Government servant. In that case respondent Gopikishore Prasad was appointed as a probationer in the Bihar Subordinate Civil Service. Some confidential reports about his honesty were submitted by two successive Deputy Commissioners of Singhbhum under whom Mr. Prosad had served. In consideration of those reports his service was terminated. It was held that the order of discharge from service was made by way of punishment and as there had been non-compliance of the provisions of Article 311(2) of the Constitution the order was wholly bad. The same view has been reiterated in AIR 1961 SC 177 State of Orissa v. Ramnurayan Das, and in AIR 1963 SC 1552 at 1554 para 5 Ramendra Chandru Banerjee v. Union of India. In AIR 1963 SC 531 Madangopal v. State of Punjab tile appellant Madangopal was appointed temporarily as a Consolidation Inspector on condition that his service may be terminated on one month's notice. He was charged by a notice with taking gratification. After considering his explanation he was discharged from his service by the Deputy Commissioner without, giving him any opportunity to show cause against the action taken against him. It was held that the termination is one by way of punishment and not in accordance with the terms of service contract or rules. After considering his explanation he was discharged from his service by the Deputy Commissioner without, giving him any opportunity to show cause against the action taken against him. It was held that the termination is one by way of punishment and not in accordance with the terms of service contract or rules. The enquiry held was clearly an enquiry for the purpose of taking punitive action including dismissal or removal from his service if the appellant was found to have committed the misdemeanor charged against him. The order was bad as there was no compliance with the mandatory requirements of Article 311 of the Constitution. The Supreme Court in the case of Champaklal v. Union of India ( AIR 1964 SC 1854 at 1860-61) held that temporary servants are entitled to the protection of Article 311 of the Constitution in the same manner as permanent Government servants, if the Government takes action against them by meting out one of the three punishments, i.e., dismissal, removal or reduction in rank. This protection is available only when the termination is by way of punishment or reduction in rank' is sought to be made by way of punishment. It has been further held that though misconduct, negligence, inefficiency or other disqualifications may be the motive or inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rules, nevertheless, if a right exists, under the contract or rules to terminate the service and motive operating in the mind of the Government is wholly irrelevant. The same view has been reiterated in AIR 1968 SC 1089 State of Punjab v. Sukh Raj Bahadur. Mitter, J. who spoke for the Supreme Court laid down five propositions of law of which proposition No 2 is of the following effect : “(ii) The circumstances preceding or attendant on the order of termination of service have to he examined in each case, the motive behind it being immaterial” In AIR 1974 SC 423 at 431-32 State of U.P. v. Sughar Singh, Sughar Singh was reverted from his officiating post of Sub-Inspector to substantative post of Head Constable on consideration of adverse entry in the Service Book while retaining other members about 199 most of whom are juniors to the respondent in service. It was held : “This makes it absolutely clear that there is no administrative reason for the reversion. In fact, there was no suggestion at any time made on behalf of the appellant that the post had been abolished or thus the respondent was, for administrative reasons, required to go back to the post of Head Constable. This circumstance only corroborates what the learned standing counsel for the State admitted before the High Court that the foundation of the order is the adverse entry made in his character roll. In this view of the matter, we have no doubt that the order was passed by way of punishment, though all outward indicia show the order to be a mere order of reversion. Even if, it were not so, we have no doubt that the order would be liable to be quashed on the ground of contravention of Articles l4 and 16 of the Constitution of India”. The Supreme Court in the case of R.S. Sial v. State of U.P. AIR 1974 SC 1317 : (1974) 3 SCR 754 following its earlier decision in AIR 1968 SC 1089 (supra) observed that whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service is the test for attracting Article 311 of the Constitution. The form of the order is not conclusive of its true nature. The entirety of the circumstances preceding or attendant on the impugned must be examined by the court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order. In AIR 1974 SC 2192 at page 2205 para 67 Shamser Singh v. State of Punjab it has been observed by A.N. Ray, C.J., who spoke for the Supreme Court : “An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311. Whether a departmental enquiry is contemplated and if an enquiry is no in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct.” 14. Whether a departmental enquiry is contemplated and if an enquiry is no in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct.” 14. P.S. Cheema was a temporary Tax Sub-Inspector in Excise and Taxation Department of the erstwhile Patiala and East Punjab. On the formation or the State of Punjab he continued in the same service in the new State. A charge was framed against him by the Vigilance Department, Government of Punjab where he was accused of dereliction and negligence of duty and gross misconduct. The respondent filed his explanation to the charges. Thereafter no action was taken on its basis. Subsequently, an order was made terminating the service of the respondent in terms of employment on giving him one month's notice. It has been held in AIR 1975 SC 1096 , State of Punjab v. P.S. Cheema by A.C. Gupta, J, who spoke for the Supreme Court relying on the above case of Shamser Singh :– “An order terminating the services of a temporary servant or a probationer, if it is by way of punishment, will attract Article 311 of the Constitution ; the form of the order is not conclusive, it is the substance of the matter that has to be larked into. Whether or not an order of termination is by way of punishment would depend on the fact and circumstances of each case”. 15. The Supreme Court in the case of State of Maharastra v. V.R. Saboji, AIR 1980 SC 42 at page 50 held that where the order of termination is framed as a termination simpliciter but the Government servant establishes by materials on record that the order, in fact, is passed by way of punishment the innocence of language will not protect it. In such cases the court will call for the record and peruse them to find out if it is made by way of punishment i.e. court will life the veil. 16. In AIR 1976 SC 2547 State of U.P. v. Ram Chandra Trivedi the fact, in short, was that the respondent Ram Chandra Trivedi was temporarily appointed as a clerk to the Gursaran Canal Division, Jhansi. After 7 years he was asked to appear in a departmental examination held in July, 1961. 16. In AIR 1976 SC 2547 State of U.P. v. Ram Chandra Trivedi the fact, in short, was that the respondent Ram Chandra Trivedi was temporarily appointed as a clerk to the Gursaran Canal Division, Jhansi. After 7 years he was asked to appear in a departmental examination held in July, 1961. On July 12, 1961, an additional type written test was held by the department. In that test it was detected by the Executive Engineer, Investigation and Planning Department. Jhansi that a clerk Gopal Deo Santia attempted to personally appear fur the respondent. He obtained explanations of both the clerks and reported the matter to the Superintending Engineer, Irrigation Department, Lucknow. The Superintending Engineer terminated the respondent's services on the following terms : “His services shall not be required after one month from the date of receipt of this notice”. It was held the order of termination of service is ex facie an order of termination simpliciter without casting any stigma on the respondent and it does not visit him with any evil consequences nor is it founded on misconduct. Hence the protection of Article 311(1) of the Constitution cannot be claimed. 17. On a conspectus of the decisions cited hereinbefore the position is now well settled that if an order of termination is made in accordance with the terms of the service rules or been not passed nor made in consideration of any misconduct, gross negligence of duty, inefficiency or other disqualifications, the order cannot be termed as an order made by way of punishment provided the same does not cast any stigma or aspersion on the integrity of the Government servant. It has also been well settled that even though misconduct, negligence of duty, inefficiency or other disqualifications may be the motive or inducing factor for making an order of termination of service according to the terms of the contract of service or the rules governing the conditions of service, the motive operating in the mind of the Government is wholly irrelevant and the order cannot be branded as one made by way of punishment. It has also been settled that even though the order of termination on the face of it appears to have been made in an innocuous manner without casting any aspersion or stigma on the Government servant concerned in accordance with the terms of the contract of service or service rules, the order may he said to have been made by way of punishment if it is proved that though the order appear to have been couched in unexceptionable form but in fact it has been made following a report on an enquiry in allegations of misconduct. In other words, the form of the order is not conclusive. It is the substance of the matter that has to be looked into. That is the facts and circumstances under which the order of termination has been made by the concerned authority have to be taken into consideration. Keeping in view the above well settled principles let us consider in the instant case whether the order of termination of service of the petitioner has been made innocuously in a direct way in accordance with the terms of the service rules i.e. Rule 34(B)(2) of the West Bengal Service Rules, Part I, 1971. There is no dispute that the appointment of the petitioner as Assistant Public Prosecutor in the court of Sub-divisional Judicial Magistrate, Contai was made in accordance with the provisions of S.25(1) of the Code of Criminal Procedure, 1973 and in accordance with the Rules framed by the Government under proviso to Article 309 of the Constitution referred to hereinbefore. The appointment of the petitioner is therefore a statutory appointment made in accordance with the above service rules, i.e. Rule 4(d) of the West Bengal Assistant Public Prosecutors (Qualifications, Method of Recruitment and Conditions of Service) Rules, 1974. Rule 4(d) clearly enjoins that such appointment will be made on probation for a period of two years but no upper limit has been fixed in the said rule regarding the probationary period beyond which such probationary period cannot be extended The petitioner though appointed "until further orders" is undoubtedly appointed as a probationar in accordance with the above rules. It is also not disputed that he has not been confirmed in the post and the petitioner has therefore no right to the post which be held prior to the making of the alleged order of termination of his service. It is also not disputed that he has not been confirmed in the post and the petitioner has therefore no right to the post which be held prior to the making of the alleged order of termination of his service. If the order of termination is an order of termination simpliciter or one made in a direct way according to the service rules then undoubtedly the same cannot be branded as one made by way of punishment and the projection of Art. 311 cannot be claimed. If, on the other hand, the order has been passed on the basis of enquiry made into certain allegations against the petitioner while in service as an Assistant Public Prosecutor then certainly the order is to be held to be an order made by way of punishment even though the form of the order is quite innocuous and is totally shorn of any stigma or aspersion on the integrity of the service career of the petitioner. In paragraph 21 of the writ petition it has been pleaded that the concerned authorities are bent upon acting with bias and collateral purpose with oblique motive to terminate the service of the petitioner In paragraph 24(a) it has specifically been p1eaded that the respondents were dissatisfied with the petitioner because he could not comply with the several orders issued by the District Magistrate, Midnapore under the direction of the Legal Remembrancer and Special Secretary, Government of West Bengil asking to comply with the withdrawal of a large number of pending criminal cases involving serious and grave offences like dacoity, attempt to commit murder, arson, burglary etc. and the petitioner asked for the grounds which are to be stated for withdrawal of such cases as required under S. 321 of the Code of Criminal Procedure. The District Magistrate forwarded a letter containing the opinion of Sri Biren Mitra, Public Prosecutor and asking the petitioner to take those grounds which the petitioner could not accept as according to him the same was not proper and valid grounds as envisaged under S. 321 of the Criminal Procedure Code which will necessitate to make an application for withdrawal of those pending cases. This enraged the concerned authorities to a great extent. This enraged the concerned authorities to a great extent. In paragraph 21 of the affidavit in opposition sworn on behalf of the respondent it has been stated that the Assistant Public Prosecutor was directed to withdraw certain cases but the contention that the Assistant Public Prosecutor has a responsibility to apply his mind to the facts of the case in such circumstance is not admitted. The Assistant Public Prosecutor is a Government employee and he has no independent jurisdiction. He is appointed under S. 25 of the Criminal Procedure Code according to the West Bengal Assistant Public Prosecutor (Qualification, Method of Recruitment and Conditions of Service) Rules, 1974. He is a Government servant and must act according to the direction of the Government. The status of a Public Prosecutor and the status of an Assistant Public Prosecutor are completely different. Public Prosecutor is not a Government servant whereas an Assistant Public Prosecutor is a Government savant. Public Prosecutor is appointed under S. 24 of the Criminal Procedure Code and the term Public Prosecutor does not include an Assistant Public Prosecutor. In a State case the state Government is a de facto complainant. The formal complaint and the informant is merely a State witness on behalf of the State. Therefore, the contention of the Assistant Public Prosecutor that he is to apply his mind to place an application for withdrawal of a case is totally erroneous. He must act according to the directions of the Government or the District Magistrate according to S. 321 of the Criminal Procedure Code. 18. In Paragraph 5 of the said affidavit it has been stated that during the tenure of the Assistant Prosecutor several complaints had been received against Sri Nemai Sundar Jana, the petitioner. 19. The learned Government Pleader appearing on behalf of the State respondent produced the relevant records of this case before the court as directed by this Court. It has been evident from the said record that several allegations were made against the petitioner Nemai Sundar Jana for his not discharging the duties properly in the matter of withdrawal of cases and also opposing ball petition in a particular case. The matter was enquired into by the Sub Divisional Officer, Contai and a report was submitted sometime in April, 1978. The matter was enquired into by the Sub Divisional Officer, Contai and a report was submitted sometime in April, 1978. It is clear from the facts and circumstances that the order of termination of the service of the petitioner though couched in an unexceptionable form has been made on the basis of the report of enquiry made into the allegations levelled against the petitioner and as such this order of termination is not a termination simpliciter according to the terms of the contract of service or of the service rules governing the service conditions of the petitioner but by way of punishment. This is more confirmed by the fact stated in paragraph 15 of the writ petition as well as in paragraphs 5, 6 & 7 of the supplementary affidavit affirmed on behalf of the petitioner that the petitioner was discharged from service without recording any reason for such discharge. Hence unsuitability or the unsatisfactory nature of his service is the basis of the order of discharge while allowing many other Assistant Public Prosecutors who are junior to the petitioner to continue in their posts as Assistant Public Prosecutor. It is also not the case of the State respondents that the post to which the petitioner was appointed had been abolished. On the other hand, it is evident from the letters of appointment annexed as annexures ‘N’ & ‘O’ to the affidavit-in-opposition that on the same day when the order of termination was made other lawyers namely, Sri Anil Nayek and Sri Chittaranjan Mahapatra were appointed as Assistant Public Prosecutors in place of the petitioners. This clearly goes to prove that the order of termination assailed in the writ petition is not a simple order of termination made in accordance with the terms and conditions of the service or the rules but it has been made with the oblique motive of terminating the service of the petitioner by way of punishment. It is proper to refer in this connection to an observation made by the Supreme Court in AIR 1974 SC 423 at 431 paragraph 20 State of UP v. Sughar Singh. It is proper to refer in this connection to an observation made by the Supreme Court in AIR 1974 SC 423 at 431 paragraph 20 State of UP v. Sughar Singh. “In the instant case we have no doubt in our mind that the peculiar circumstance that from out of a group of about 200 officers most of whom are junior to the respondent the respondent alone had been reverted to the substantive post of Head Constable makes it absolutely clear that there was no administrative reason for this reversion. In fact, there was no suggestion at any time made on behalf of the appellant that the post had been abolished or that the respondent was, for administrative reasons, required to go back to his own post of Head Constable. This circumstance only corroborates what the learned standing counsel for the State admitted before the High Court that the foundation of the order of reversion is the adverse entry made in his character roll”. In other words, the impugned order of termination has got penal consequences and as such the protection under Art. 311(2) of the Constitution is available to the petitioner The finding of the learned Judge that it did not appear from the records of the case that there was any enquiry or report or complaint from any quarter before the order of termination of the petitioner's service was passed by the Government or Article 311(2) has not been complied with the impugned order of termination of service of the petitioner is wholly illegal and unwarranted and so liable to be quashed and set aside. 20. The other formidable grounds advanced on behalf of the petitioner is that the impugned order is bad being made in breach of Articles 14 and 16 of the Constitution. In paragraph 16 of the petition it has been pleaded that the order terminating the service of the petitioner is violative of Articles 14 and 16 of the Constitution as persons juniors to the petitioner have been retained in service whereas the petitioner's service has been sought to be terminated by the impugned order dated September 25, 1978. In paragraph 16 of the petition it has been pleaded that the order terminating the service of the petitioner is violative of Articles 14 and 16 of the Constitution as persons juniors to the petitioner have been retained in service whereas the petitioner's service has been sought to be terminated by the impugned order dated September 25, 1978. In paragraph 15 of the affidavit-in-opposition averments are sought to be traversed by saying that the statements in the said paragraphs are not admitted as because in case of purely temporary service termination of employment with one month's notice or one month's salary can be made and it does not constitute any violation of the Articles 14 and 16 of, he Constitution if any person with lesser period of service is retained. In paragraph 11 of the affidavit-in-reply sworn on behalf of the petitioner it has been stated that one Assistant Public Prosecutor has been appointed in a Court of Judicial Magistrate throughout the State of West Bengal and in Contai Subdivision three Assistant Public Prosecutors were appointed including the petitioner and Sri sekhar Nath Bakshi in the courts of Subdivisional Judicial Magistrate,. (Frst Court), Judicial Magistrate (Second Court), Sub-Divisional Judicial Magistrate (Frst Court) respectively and Sri Sekhar Nath Bakshi had been allowed to continue as Assistant Public Prosecutor in the second court of Judicial Magistrate, Contai. In paragraph 12 of the said affidavit it has also been stated that in the district of Midnapore there are 18 courts of Judicial Magistrate including the court of Chief Judicial Magistrate of the district and all Assistant Public Prosecutors except this deponent and Sri Satyabrata Kar Mahapatra had been continuing in their services and particulars of all Assistant Public Prosecutors were also given therein. In paragraph 12(a) it has also been averred that a large number of Public Prosecutors appointed under S. 25(I) of the Code of Criminal Procedure, 1973 in other districts in the State of West Bengal pos ed in each court of Judicial Magistrate are continuing in their services and the particulars of some of those Assistant Public Prosecutors who are juniors to the petitioner were given thereunder. A supplementary affidavit has been sworn on behalf the petitioner in paragraphs 5, 6, & 7 the names of the Assistant Public Prosecutors who are all juniors to the petitioner were mentioned and it has been stated that though the petitioner's services were terminated those Assistant Public Prosecutors who are juniors to the petitioner have been allowed to continue in their services. No counter has been filed to traverse or controvert any of those specified statements made in the supplementary affidavit on behalf of the State respondents. Mr. Gooptu, learned Government Pleader appearing for the State has tried to contend that the petitioner was appointed as an Assistant Public Prosecutor until further orders. It has not been shown whether the other Public Prosecutors were appointed on similar terms and according to him unless this is shown the submission as to the impugned order being discriminatory and violative of Articles 14 and 16 cannot be entertained and considered. It is for the petitioner to show in order to avail of this argument that all the other Assistant Public Prosecutor appointed by the Government are similarly posted under similar circumstance. In other words, they belong to the same class to which the petitioners belong. To meet this challenge Mr. Chakravarty drew our notice to the notifications made in the Calcutta Gazette dated November 21, 1974. It appears from the various notifications published in the said issue that several appointments of Assistant Public Prosecutors were made by the Government in exercise of power conferred by sub-s. (1) of S. 25 of the Code of Criminal Procedure, 1973 and the terms of all those appointments are identical, that is, the appointments have been made “Until further orders”. Thus, there is no doubt that the contention of the petitioner that the juniors who were appointed on the similar terms have been retained in service while doing away with the service of the petitioner by the respondent State. No special reason has been shown, as I have already said, in the order of termination nor any evidence have been produced to show that the services of the petitioners were terminated for certain reasons which placed them in a class different from the class to which the other Assistant Public Prosecutors named in the Supplementary Affidavit as well as in the affidavit in reply who were allowed to continue in their services belong. This is per se discriminatory as the petitioners have been singled out of the large number of Assistant Public Prosecutors for the purpose of terminating their services in violation of the well known rule: that if any retrenchment in the service is necessary retrenchment must be on the well know principle “first come last go”. In AIR 1979 SC 429 Government Printing Press v. D.B. Belliappa was appointed temporary junior Compositor in Government Press, Mecara. The employment was temporary and was to continue ‘until further orders’. A notice to show cause why disciplinary action should not be taken against the respondent was issued by the Branch Manager. On January 3, 1967, an order was served on the respondent terminating his services. The order was couched in the following terms : “Your appointment is purely temporary and terminable at any time without previous notice and without reasons bring assigned therefor are not required. Therefore your services are terminated with immediate effect”. This order was challenged in a writ petition which ultimately came up in appeal to the supreme Court. It has been held by the Supreme Court : "The protection of Arts 14 & 16(1) will be available even to such a temporary Government servant if he has been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors, similarly circumstanced, it is true that the competent authority had the discretion under the conditions of service governing the employee concerned to terminate the latter’s employment without notice but such discrimination has to be exercised in accordance with the reason and fairplay and not capriciously................Arbitrary invocation or enforcement of a service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offend the equality clause in Arts 14 and 16(1)," The impugned order in the facts and circumstances of this case discussed hereinbefore is undoubtedly made arbitrarily and in utter violation of the principles of the protection against the discrimination provided in Arts, 14 and 16 of the Constitution of India and as such the order is also illegal, bad and hence liable to be quashed. 21. 21. The next question that requires to be considered is whether the order has been made either in compliance with Rule 34(B)(2) of the West Bengal Service Rules, Part I, 1971 or clause (viii) of Rule 8 of the West Bengal Services (Classification, Control and Appeal) Rules, 1971. Both the above Rules confer power on the Government to terminate the service of a probationer Government servant in accordance with the terms of his employment after serving one month's notice or after payment of one month’s salary or wages in lieu of such notice. It had been pleaded in paragraph 24(d) of the petition that the impugned order of termination dated 25th September, 1978 as mentioned in annexure ‘B’ to the petition cannot be given effect to because the order took effect on and from 25th September, 1978 neither the payment of one month's salary as required under above. Rules of service were made or offered to the petitioner at the time when the order was given effect to. In paragraph 21 of the affidavit in opposition on behalf of the State respondents it has been stated that the salary for the months of September and October, 1978 was offered to the petitioner twice–at the time of service or the termination of the notice on the petitioner on 30th September, 1978 but the petitioner refused to accept the same. The petitioner, however, were paid salary upto November, 1978 on 5th of January, 1979. It appears from annexure ‘N’ to the Writ petition that the Secretary, Government of West Bengal, Judicial Department by Memo No, 13549-J, dated 25.9.78 has intimated the District Magistrate, Midnapore that Sri Anil Nayak and Sri Chittaranjan Mahapatra advocates may be appointed as Assistant Public Prosecutors under S. 25(3) of the Code of Criminal Procedure, 1973 until further orders in place of Sri Nemai Sundar Jana and Sri Satyabrata Kar Mahapatra respectively (the petitioners appellants). Accordingly the District Magistrate issued letters of appointment to those two advocates as Assistant Public Prosecutors to conduct cases on behalf of the State until further orders in the Court of Subdivisional Judicial Magistrate, Contai and in the Court of Judicial Magistrate, First Court, This clearly goes to show that the order of termination was given immediate effect on the date of making of the order, i.e. on 25.9.78. Undoubtedly the payment of full one month's pay including allowances were not paid or tendered to the petitioner on that day i.e 25.9.78 when the order took effect. This being the position the order being not made in accordance with the compliance of the above service rules are also to be quashed and set aside. Reference may be made in this connection to the decision reported in AIR 1972 Supreme Court page 1487, Supreme Court in the case of Senior Superintendent, R.M.S., Cochin & anr. v. K.V. Gopirnath, Sorter, AIR 1972 SC 1487 while considering the challenge on the ground of non-compliance with proviso to Rule 5 of Central civil Service, (Temporary Services) Rules, 1975 which is also in pari materia with he above Rules observed that the Rule is capable of the only interpretation that the order of termination can be upheld if the requisite amount in terms of the Rule was paid into the bands of the employee or made available to him at the same time he was served with the order. To put the matter in a nutshell, to be effective the termination of service has to be simultaneous with the payment to the employee of whatever is due to him. The same view was expressed in a decision by a Division Bench of this Court in the case of Krishna Kamal Ghosh v. Union of India & anr in 1980(1) CHN 127 to which we were parties. In that case it was held that nonpayment of the full amount of pay and allowances at the time when the order of compulsory retirement was served on the appellant renders the order invalid and unenforceable. This being the position this contention has got merit and so it succeeds. 22. The last question that was urged on behalf of the petitioner is that the impugned order is made for an oblique purpose, the purpose being that to give appointment to the lawyers who have bet n already appointed who are in the good book of the Law Minister. In other words, the impugned order is vitiated by malice in law and this has been pleaded in paragraph 24(J) of the petition where allegations of mala fide have been made against the Law Minister. In other words, the impugned order is vitiated by malice in law and this has been pleaded in paragraph 24(J) of the petition where allegations of mala fide have been made against the Law Minister. But unfortunately neither particulars of mala fides were stated with clarity nor the Law Minister has been impleaded as a party respondent in the writ petition. This being the position in our opinion, the allegations of mala fide has neither been properly pleaded nor the same had been proved. The party against whom such allegation of mala fides have been made has also not been impleaded and as such that party did not get any opportunity of controverting the allegations of mala fide brought against him. In view of the well-settled principle this argument is not sustainable and the same is rejected. Several decisions were cited at the bar by the learned Advocate for the respondents to bring home this contention that the allegation of mala fide have not been proved. It is needless to consider those decisions in view of our above findings that the allegations of mala fide have not been pleaded with clarity nor sufficient particulars have been given nor the persons against whom mala fides has been alleged have not been impleaded as parties in the writ petition. 23. In the premises aforesaid the contentions raised on behalf of the appellant having succeeded on the three main points referred to hereinbefore the appeals succeed and the same are allowed. The judgement of the learned single Judge appealed from are set aside. The impugned orders of termination dated 25th of September, 1978 passed by the Judicial Secretary, Government of West Bengal terminating the services of the petitioners are here by quashed and set aside. In view of the facts and circumstances of the case we do not deem it proper to impose any cost. The appeals are accordingly allowed without costs. 24. Oral prayer for leave under Article 134(a) of the Constitution of India as prayed for is rejected. Banerjee, J.–I agree. Appeals allowed; Orders quashed.